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186 U.S.

24
22 S.Ct. 744
46 L.Ed. 1039

MONTANA MINING COMPANY, Limited, Plff. in Err.,


v.
ST. LOUIS MINING & MILLING COMPANY OF
MONTANA. NO 213. MONTANA MINING COMPANY,
Limited, Plff, in Err., v. ST. LOUIS MINING & MILLING
COMPANY OF MONTANA. NO 214.
Nos. 213, 214.
Argued April 9, 1902.
Decided May 19, 1902.

Statement by Mr. Chief Justice Fuller:


This was an action brought by the St. Louis Mining & Milling Company
of Montana against the Montana Mining Company in the circuit court of
the United States for the district of Montana, to recover damages for
trespass on a vein of rock, having its apex entirely within the described
premises of plaintiff, and extracting therefrom and converting large
quantities of valuable ore.
The cause was tried on a second amended and supplemental complaint,
which was filed June 26, 1899, and is set forth in the record, but the
original complaint and the amended complaint are not. The record
contains the original summons, dated September 18, 1893, which ran
against the Montana company and sundry individuals, whose citizenship
was not stated, though it appeared that they were served in Lewis and
Clarke county, Montana, but who seem to have disappeared as parties in
the progress of the cause, and who are not parties to the complaint
contained in the record.
The 1st paragraph of the second amended and supplemental complaint
alleged
'That at the several dates hereinafter mentioned this plaintiff was, and now
is, a corporation duly organized and existing under the laws of the then

territory (now state) of Montana, under the corporate name of St. Louis
Mining & Milling Company of Montana, and as such was and is entitled
to own, enjoy, and possess mining property in the said state, with all the
rights, privileges, and immunities incident and appurtenant thereto; and
that at said dates the said defendant, Montana Mining Company, Limited,
was and now is a foreign corporation, incorporated under the laws of
Great Britain, and, as such corporation, by virtue of its compliance with
the laws of the then territory (now state) of Montana, was and is entitled
and authorized to do and transact business in said state.'
The 2d paragraph alleged plaintiff 'to be the owner of, entitled to, and in
the actual possession and occupation of that certain quartz lode mining
claim known as the St. Louis quartz lode mining claim, and all the quartz,
rock, and ore, and precious metals contained in any and all veins, lodes,
and ledges of mineral-bearing rock through their entire depth, the tops or
apexes of which lie within the surface lines of the said fractional portion
of said St. Louis lode mining claim, although such veins, lodes, or ledges
may so far depart from a perpendicular in their downward course as to
extend outside of the vertical side line of the surface of the said St. Louis
quartz lode mining claim,' situated in the county of Lewis and Clarke,
Montana, and more particularly described as follows: (Here followed a
full description, concluding) 'Save and except that portion thereof known
as the 30-foot strip or compromise ground which belongs to and is a part
and portion of what is known and designated as the Nine Hour lode
mining claim, which said fractional portion of said St. Louis lode mining
claim is described as follows, to wit.' Here followed description.
The 3d and 4th paragraphs were as follows:
'3. That the said defendant, Montana Mining Company, Limited, is and
was the owner of what is known and designated as the Nine Hour quartz
lode mining claim, situate and being east of the said St. Louis lode mining
claim, and including the 30-foot strip or compromise ground aforesaid,
and that the discovery, location, and recordation of the said St. Louis lode
mining claim and the United States patent therefor was made prior to the
discovery, location, and recordation and patent to the said Nine Hour lode
mining claim.
'4. That the dip of one of the veins having a portion of its top or apex
inside of the surface location and patented ground of the said St. Louis
mining claim is to the east and dips under and beneath the said Nine Hour
lode mining claim, including the said 30-foot strip or the compromise
ground, which is a part and portion of the said Nine Hour quartz lode

mining claim, which said portion of said vein has its top or apex within
the said St. Louis mining claim as follows, to wit: Commencing at a
projected parallel end line of said St. Louis quartz lode mining claim at a
point on the east side line thereof, between corners, Nos. 1 and 2,
extended vertically downward, whereat it passes through the hanging wall
of said vein, lode, or ledge, at a point from which corner No. 1, being the
northeast corner of said St. Louis quartz lode mining claim, bears north 12
degrees 15 minutes east, distant 520 feet, where said hanging wall is
disclosed at the surface by an upraise of said projected parallel end line, 5
feet west of the east side line of said St. Louis quartz lode mining claim;
thence, from where the said projected parallel end line passes through said
east side line of said claim, and along the east side line of the said claim
between corners Nos. 1 and 2, south 21 degrees 15 minutes west, 512.7
feet to a point, being the intersection of the said east side line of said St.
Louis quartz lode mining claim, between corners Nos. 1 and 2, with the
west line of the said 30-foot strip hereinbefore described; thence south 59
degrees 50 minutes west 108 feet and along the west line of the said 30foot strip, to a projected parallel end line of said St. Louis quartz lode
mining claim, extended vertically downward, which passes through the
hanging wall of said vein at the surface and at the crossing of the said
hanging wall with the west line of the said 30-foot strip.
'That it is also the owner of, in possession, and entitled to the possession
of an additional portion of the said apex of said claim lying to the south of
the southern point hereinbefore mentioned, a distance of 25 feet, whereat
the foot wall of the said vein passes out of the east side line of the said St.
Louis lode mining claim.
'A map or plat showing the point at which the said vein enters said St.
Louis lode mining claim as so hereinbefore described, and whereat the
same departs therefrom upon the east line of said claim, is hereto attached,
marked Exhibit 'A,' and made a part of this complaint, and to which
reference is made.'
The Montana Mining Company answered June 30, 1899, in three
paragraphs, the first admitting the allegations of paragraphs numbered 1,
2, and 3 of the second amended and supplemental complaint; the 2d
paragraph denying each and every other allegation thereof; and the 3d
being as follows:
'And this defendant, further answering, says that the plaintiff is estopped
from claiming any of the mineral found or which may hereafter be found
in said 30-foot strip or compromise ground, for that heretofore, to wit, on

or about the 7th day of March, A. D. 1884, one Charles Mayger, who was
then and there the predecessor in interest of plaintiff, made, executed, and
delivered to William Robinson, James Huggins, and Frank P. Sterling,
who were and are the predecessors in interest of this defendant, a bond for
a deed, wherein and whereby he covenanted and agreed to convey the said
30-foot strip or compromise ground to the predecessors in interest of this
defendant, or their assigns, with all the mineral therein contained, a copy
of which said bond is hereto attached, marked Exhibit 'A,' and made a part
of this answer. That thereafter and after the said Charles Mayger had
obtained a United States patent for the whole of said St. Louis lode mining
claim, including said 30-foot strip or compromise ground, the said
Mayger, in order to cheat and defraud this defendant, assumed to convey
the said compromise ground to the above-named plaintiff. That thereafter
this defendant demanded of and from the said plaintiff and from the said
Mayger a deed for the said compromise ground in accordance with the
terms and provisions of the bond aforesaid, and the said plaintiff and the
said Mayger having refused and declining to make, execute, or deliver
such a deed, this defendant thereafter, and on or about the 6th day of
September, A. D. 1894, commenced an action in the district court of the
first judicial district of the state of Montana, within and for the county of
Lewis and Clarke, wherein this defendant was plaintiff and the abovenamed plaintiff, together with the said Charles Mayger, were defendants,
to compel the specific performance of the said bond for a deed
hereinbefore mentioned and set forth; that thereafter such proceedings
were had in said action as that on the 1st day of June, A. D. 1895,
judgment was duly made and entered therein in favor of this defendant,
the plaintiff therein, and against the plaintiff, defendant in said action,
whereby, among other things, it was ordered, adjudged, and decreed that
the said bond hereinbefore mentioned by specifically performed, and that
the defendant, the above-named plaintiff, make, execute, and deliver to
this defendant a good and sufficient conveyance in fee simple absolute,
free from all encumbrances, for the premises mentioned and described in
the complaint in said action and in the bond hereinbefore mentioned; that
in pursuance of said judgment, order, and decree the said plaintiff, on or
about the 1st day of July, A. D. 1895, made and executed a deed to this
defendant of and for the said premises and of all the mineral therein
contained, and thereafter the said deed was duly delivered to this
defendant, a copy of which said deed is hereunto annexed, marked Exhibit
'B,' and made a part of this answer. And this defendant avers that in and by
the said proceedings and the said deed the said plaintiff is estopped from
claiming any part of the said compromise ground or 30-foot strip
aforesaid, or any mineral contained therein.'

Replication was filed, the cause tried by the court and a jury, a verdict
returned in favor of plaintiff for $23,209, and judgment rendered thereon.
To review this judgment the Montana company prosecuted a writ of error
from the circuit court of appeals for the ninth circuit, which writ was
dated October 7, 1899, and the judgment was affirmed May 14, 1900. 42
C. C. A. 415, 102 Fed. 430. The writ of error in No. 213 was then
allowed.
On the trial the St. Louis company was restricted by the circuit court to
damages for ore taken north of what was designated as the 108-foot plane
of the Nine Hour claim, but the company insisted on the right to recover
for ore taken up to what was designated as the Nine Hour 133-foot plane.
Accordingly the St. Louis company took out a cross writ of error from the
circuit court of appeals, dated January 30, 1900, and that court reversed
the judgment, October 8, 1900, and remanded the cause for a new trial as
to the recovery sought for the conversion and value of certain ores
between the planes designated as the 108-foot and 133-foot planes. 44 C.
C. A. 120, 104 Fed. 664. The writ of error in No. 214 was then brought.
Mr. Chief Justice Fuller delivered the opinion of the court:

The St. Louis company recovered judgment in the circuit court for the sum of
$23,209. This judgment was affirmed by the court of appeals, May 14, 1900, on
the writ of error brought by the Montana company.

On the 8th of October, 1900, the court of appeals gave judgment on the cross
writ of error of the St. Louis company in these words: 'On consideration
whereof, it is now here ordered and adjudged by this court that the judgment of
the said circuit court in this cause be, and the same is, hereby, reversed, with
costs, and the cause is remanded to said circuit court for a new trial as to
damages alleged and recovery sought for the conversion and value of certain
ores taken from the Drum Lummon vein on its dip between the planes
designated as the 108-foot and 133-foot planes.'

To review these judgments thus separately rendered, the Montana company


sued out on the same day, October 24, 1900, two writs or error from this court,
the records returned on which were filed December 18, 1900, and the cases
docketed, and now numbered 213 and 214.

The St. Louis company moved to dismiss the writ of error in No. 213 on the
ground that the jurisdiction of the circuit court was, according to plaintiff's

statement of his own claim, 'dependent entirely upon the opposite parties to the
suit or controversy being aliens and citizens of the United States or citizens of
different states,' and the judgment of the circuit of appeals was, therefore, not
reviewable on error under the 6th section of the judiciary act of March 3, 1891.
And at the same time the St. Louis company moved to dismiss the writ of error
in No. 214 on the additional ground that the judgment was not a final judgment.
This objection is, of course, well taken, and the writ of error must be dismissed.
But when, thereupon, the mandate of the court of appeals goes down to the
circuit court, if in the meantime we have retained jurisdiction in No. 213, the
result would be that part of the case would be pending in the court of original
jurisdiction, and part in the court of last resort. And should we differ with the
court of appeals and reverse its judgment brought up in No. 213, our mandate
would go to the circuit court, which would have been already directed to
proceed as to part of the case on other principles. We do not mean to intimate in
the slightest degree any conclusion on the merits, but only wish to indicate
embarrassments which might arise if one and the same case is treated as two
separate and independent cases.
5

By rule 22 of this court, appeals and cross appeals are heard together, and the
practice is the same as to writs and cross writs of error. Where there are cross
appeals or cross writs of error in the circuit courts of appeals in cases in which
the decrees or judgments are made final in that court by statute, and the case is
brought here on certiorari, we consider only the errors assigned by petitioner,
unless a cross writ of certiorari is applied for and allowed. Hubbard v. Tod, 171
U. S. 474, 43 L. ed. 246, 19 Sup. Ct. Rep. 14.

In this case two writs of error were sued out by the Montana company because
there were two judgments rendered below, but the records on both constitute
the record in one and the same case, as both writs of error in the court of
appeals ran to the same judgment of the circuit court.

It is said that the complaint described two sections of the vein, one lying north
of the 108-foot plane and one between the 108 and 133-foot planes, and that as
they were described separately this was equivalent to two counts on distinct
causes of action. But we do not understand that this is so, for the complaint is
complete in itself, and a single trespass may be committed on several closes and
alleged in a single count. Moreover, although set up in two counts, if there were
no misjoinder, which is not pretended here, the recovery would be entire and
would require an entire judgment. And as the trial court sustained a recovery as
to one part of the vein, and not as to the other, and both parties took bills of
exceptions and resorted to the appellate tribunal, we do not think that the
judgment as rendered could be retained as a judgment and a retrial had as to so

much of the claim as was disallowed. Our attention is not called to any act of
Congress or to any rule of practice which authorizes this to be done, nor to any
statute or decision of the courts of Montana to that effect, if, indeed, the Federal
courts would be obliged to follow such practice if it existed. And the difficulty
of the situation is illustrated by the suggestion of counsel that this one action
should be regarded as two actions, over one of which the ground of jurisdiction
of the circuit court was dependent solely on diverse citizenship, and over the
other, not.
8

But we are of opinion that the judgment of the court of appeals on the writ of
error prosecuted by the St. Louis company operated to reverse the prior
judgment of affirmance, inasmuch as the court in terms reversed the judgment
of the circuit court, although imposing a limitation on the extent of the new
trial awarded. Even if the court of appeals had power to impose that limitation,
the issue so reserved deprived the first judgment of finality so far as our
jurisdiction is concerned. Covington v. First Nat. Bank, 185 U. S. , ante
645, 22 Sup. Ct. Rep. 645.

The answer to the complaint consisted of a general denial and an affirmative


defense that the plaintiff had granted by contract, and afterwards by deed
enforced by a decree of court, a 30-foot strip along a portion of its side line, and
the trial court held that the plaintiff could not recover for the 25-foot section
between the two planes, but that it could recover northerly from the 108-foot
plane. Each party was defeated in some part of its contention, and each party
took the case to the court of appeals, but the decision of that court left a part of
the case undisposed of in the court below. The judgment of reversal being
before us in No. 214, we are not compelled to ignore its effect on the judgment
in No. 213, and to entertain one writ of error while dismissing the other. Butler
v. Eaton, 141 U. S. 243, 35 L. ed. 714, 11 Sup. Ct. Rep. 985; Kimball v.
Kimball, 174 U. S. 158, 43 L. ed. 932, 19 Sup. Ct. Rep. 639; Mills v. Green,
159 U. S. 654, 40 L. ed. 294, 16 Sup. Ct. Rep. 132; Chicago, D. & V. R. Co. v.
Fosdick, 106 U. S. 84, 27 L. ed. 65, 1 Sup. Ct. Rep. 10.

10

When these writs of error were taken out the judgment first rendered had
ceased to be final by the operation of the second judgment, which was itself not
final, and the result is that both must be dismissed.

11

Writs of error dismissed.

12

Mr. Justice Gray did not hear the argument and took no part in the decision.

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